Ken Do

Off the coast of Can Tho, Vietnam • 1980s

A girl had collapsed. No one could help, they could barely move from sea sickness. There was no space and the smell of vomit suffocated in the dark heat inside the hull. The first night was miserable, because of the smell and not knowing who else made it.

Hours earlier, Khanh had squatted in the brush at the shore of Can Tho, ready to obey his father. His eyes fixed on a boat carrying authorized exiles soon to weigh anchor. Run to the boat, don’t look back. Let go of your brother and sisters if they get shot and keep going. Get on the boat. Go to the bottom and don’t move.

Read the full story in Flight and Freedom. Coming in 2015.

Would Ken Do get in to Canada today?

Claim analysis by Peter Showler

There are two different answers to this question.

In 1979, Ken and his family were accepted through Canada’s Overseas Resettlement Program. The program still exists today, accepting about 13,000 refugees annually. That includes special programs for high profile refugee crises, for example, Iraq and Syria. However, if you have fled a refugee crisis that is not the flavor of the year, for example, the Democratic Republic of Congo or the Rohingya refugees from Burma, destitute refugee camps are the end of the line. The fate of Ken’s family would depend on Canada’s political perspective on the Vietnamese asylum crisis. If the Vietnamese asylum crisis had a high political interest for Canada, Ken could be accepted through a special program, although his chances would be greatly diminished. Five thousand, rather than sixty thousand refugees, would be a more predictable order of magnitude. If Canada did not establish a special program, Ken and his family could languish in refugee camps for more than 20 years.

If Ken’s family were able to reach Canada by boat rather than going to a refugee camp, they would be processed through Canada’s new Inland Refugee System. Under the 1951 Refugee Convention, Ken’s family has a right to come directly to Canada to seek protection. Despite international law and common sense, they would be viewed as “queue jumpers” and would treated in a very different manner than in 1979. Under the new law, all passengers on the boat would be designated as an “irregular arrival”. The designation includes every man, woman and child over the age of fifteen and it has serious consequences.

Everyone would be automatically detained for two weeks. Men and women would be kept in separate detention centres. Children under sixteen would remain in detention with their mothers, “voluntarily”, or be separated and placed with provincial family service agencies. If Ken can produce valid identity documents within two weeks, he will probably be released. If his documents are unavailable (destroyed, lost at sea, held by the Vietnamese government), he will be kept in detention for an additional six months, probably in a medium security prison housing serious criminals. If he has need of psychological care due to severe trauma, it will not be available.

He will have 60 days to prove his refugee claim, while in detention, with limited access to a lawyer. Except through friends or relatives already in Canada, he will have virtually no opportunity to gather or obtain evidence which must be submitted 20 days before the hearing. Since he speaks French, he will be entitled to a hearing in French, thus avoiding the need for an interpreter.

Given similar country conditions to 1979, Ken will probably be accepted as a refugee. The objective documentary evidence is very strong that any ethnic Vietnamese who flees Vietnam for political reasons, would be severely persecuted upon return.

Once accepted, Ken would be released from detention. However, he will not be able to apply for permanent residence for five years. This provision is intended as a punishment for arriving in a group by boat. He will be marginalized for five years, unable to go to university or begin a meaningful working career. Far worse, if his family is trapped in Vietnam or in a refugee camp, he will not be able to sponsor them for five years. Realistically, it will be seven years before he will see them in Canada. He will not be able to apply for a travel permit to visit or support them. After five years, if circumstances have changed in Vietnam, the government may apply to the IRB to remove his refugee status and send him back to Vietnam.

Conclusion

If Ken manages to get to Canada by boat, he will be permitted to remain with a contingent form of refugee protection. He will not be able to get on with his life or help his family in meaningful ways for at least five years.